In February, we posted a discussion with respect to how workplace political expression could go awry with human rights law. The article also provided best practices on how human resources professionals and employers can appropriately address human rights complaints specifically on the basis of political belief, activity or association. However, a comment sparked further discussion on how workplace political expression could also contravene harassment provisions under occupational health and safety legislation.
How does health and safety legislation address workplace harassment?
Ontario, British Columbia, Manitoba and Saskatchewan are the only Canadian provinces to include harassment prevention provisions in their workplace health and safety legislation. The definition of harassment in occupational health and safety law usually mirrors the definition found under human rights legislation. Quebec deals with the broad matter of psychological harassment in labour standards legislation.
- Ontario’s Occupational Health and Safety Act (OHSA) defines “workplace harassment” to mean (a) engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome, or (b) workplace sexual harassment.
- British Columbia’s definition of “violence” is extended to include bullying and harassment under the Workers Compensation Act (WCA) and Occupational Health and Safety Regulations. Workplace bullying and harassment includes any inappropriate conduct or comment by a person towards a worker that the person knew, or reasonably ought to have known, would cause that worker to be humiliated or intimidated. It excludes any reasonable action taken by an employer or supervisor relating to the management and direction of workers or the place of employment.
- Saskatchewan’s Employment Act and Occupational Health and Safety Regulations provide a very broad definition of harassment to address personal harassment in the workplace, such as abuse of power and bullying. “Harassment” is defined as any inappropriate conduct, comment, display, action, or gesture by a person that:
- is based on race, creed, religion, colour, sex, sexual orientation, marital status, family status, disability, physical size or weight, age, nationality, ancestry, or place of origin; or
- is subject to subsections (3) and (4) (see below), adversely affects the worker’s psychological or physical well-being and that the person knows or ought reasonably to know would cause a worker to be humiliated or intimidated; and
- constitutes a threat to the health or safety of the worker.
Subsections (3) and (4) indicate that to constitute harassment, there must be repeated conduct, comments, displays, actions, or gestures established, or a single serious occurrence of conduct or a single serious comment, display, action, or gesture that has a lasting harmful effect on the worker.
Note that the harassment requirements of the Employment Act do not include any reasonable action that is taken by an employer, manager, or supervisor relating to the management and direction of the employer’s workers or the place of employment.
- Manitoba’s Workplace Safety and Health Regulation state that “harassment” means:
- objectionable conduct that creates a risk to the health of a worker; or
- severe conduct that adversely affects a worker’s psychological or physical well-being.
For the purpose of the definition “harassment”, conduct is:
- objectionable, if it is based on race, creed, religion, colour, sex, sexual orientation, gender-determined characteristics, marital status, family status, source of income, political belief, political association, political activity, disability, physical size or weight, age, nationality, ancestry or place of origin; or
- severe, if it could reasonably cause a worker to be humiliated or intimidated and is repeated, or in the case of a single occurrence, has a lasting, harmful effect on a worker.
Conduct includes a written or verbal comment, a physical act or gesture or a display, or any combination of them. The Regulation’s definition states that objectionable conduct or comment has to be directed at a worker in the workplace.
All the above provincial requirement, require employers to ensure, insofar as is reasonably practicable, that the employer’s workers are not exposed to harassment with respect to any matter or circumstance arising out of the workers’ employment. In addition, and in general, employers must implement a policy and controls to prevent harassment in the workplace, and to protect workers from workplace harassment that may affect their health and safety. It also includes developing and implementing procedures for workers to report incidents or complaints of workplace bullying and harassment including how, when and to whom a worker should report incidents or complaints, and how the employer will respond and investigate such a complaint or incident.
Applying occupational health and safety requirements to workplace political expression
Let me present the two arguments (bearing in mind the Ontario’s Occupational Health and Safety Act (OHSA) definition of harassment) that were brought up in the previous post:
- “Remember, in the definition of harassment under OHSA, it says that the act of harassment must be known or ought reasonably to be known to be unwelcome. If I embark in a political discussion with you, over a water cooler, at first glance, how am I to reasonably know that my political belief or comments is unwelcome to you. Unless, my employer has a clearly communicated policy limiting the discussion of political issues at work because of the risks of unlimited “free speech” in the workplace.”
- “I’m pretty sure that it could be construed to be “reasonably known” that comments supporting the complete ban of entire ethnicities or faiths, the misogyny towards women, vitriol about other nations, and a whole slew of other related “political” comments would still be unwelcome for any unreasonable person. They should not be expressed at all, rather than waiting for an indication from the target audience (or a co-worker overhearing them) to indicate objection or concern.”
The definition of harassment under OHSA includes both a subjective and objective component. In stating this, the Ontario Human Rights Commission notes that “the definition of harassment in the OHSA is broader than the one in the Human Rights Code, in that it includes any form of harassment, not just harassment based on one of the Code’s protected grounds (such as sex, race, disability, etc.).”
In the 2016 matter of Anderson v. Law Help Ltd., the Human Rights Tribunal of Ontario (the “Tribunal”) addressed whether an employer harassed a former employee as under the Code “by engaging in a course of vexatious comment or conduct towards her that was known or ought reasonably to have been known to be unwelcome”. According to the Tribunal, there is an objective standard to determine whether the individual respondent ought reasonably to have known that his questioned behaviour towards the applicant was unwelcome. The standard is what the perception of a “reasonable person” would be, considering the perspective of both a reasonable person in the applicant’s position and in the respondent’s position. See paragraph 62 of the decision.
The Tribunal found the employer’s comments and conduct to be vexatious “because they clearly distressed the applicant,” and that he “knew or ought reasonably to have known that any further sexual advances were unwelcome.” The Tribunal reasoned that after the former employee had sent the employer several messages clearly explaining why she was not interested in having a relationship with him, at that point, a reasonable person would have known that any further sexual advances would be unwelcome. See paragraphs 76 and 77 of the decision.
In stating this, it appears it is only after the former employee clearly stated to the employer that she was not interested in having a relationship with him, that his continued actions constituted “harassment”.
The case of Conforti v. Investia Financial Services Inc., decided on September 23, 2011, addressed the conduct characterized as workplace harassment although that was not the main point of the case. However, it does highlight that to amount to a course of vexatious comment or conduct, email messages (and possibly other forms of work-related communications) between co-workers would generally need to be repetitive (i.e., occur more than twice), and the sender(s) of the communication would need to be clearly shown to have awareness that the comments made were unwelcome, or had the real potential to be unwelcome.
In relating this to a political discussion at the workplace and the issue of harassment as under the OHSA, it seems like it would only be after a worker clearly expresses to their co-worker that what was expressed or comments provided in their political discourse is unwelcome to them then, at that point, a reasonable person would have known that any further political comments in the same vain, from that co-worker, would be unwelcome.
The Ontario Ministry of Labour (the “MOL”) has affirmed that “[d]ifferences of opinion or minor disagreements between co-workers would […] not generally be considered workplace harassment”, and that “[w]orkplace harassment often involves repeated words or actions, or a pattern of behaviors, against a worker or group of workers in the workplace that are unwelcome.”
Therefore, to amount to a course of vexatious comment or conduct, to trigger harassment under OHSA, the political discourse between co-workers would generally need to be repetitive (i.e., occur more than twice) and very serious (to the point of being humiliating, or vexatious), and the party to the discourse would need to be clearly shown to have awareness that the comments made were unwelcome, or had the real potential to be unwelcome.
I will also add, not all political arguments must express or support a complete ban of entire ethnicities or faiths, the misogyny towards women, vitriol about other nations, and a whole slew of other related “political” comments that would be unwelcome for any unreasonable person, unless you are talking to a white supremacist or somebody like. It is also wrong to jump to the conclusion that a workplace political argument involves only topics that are against women or ethnicities, faiths or race.
For example, talking about the sitting liberal government’s policies on women and work including the matter of equal pay will not generally incur a discourse that would constitute harassment. That is a political discourse. There may be disagreements or differing positions, but it does not have to be insulting or vexatious.
Addressing the employer’s responsibility towards handling political arguments
It was commented in the previous article that: “This isn’t just an issue between managers/supervisors and their staff. Simply “allowing” employees to discuss politics between themselves is unlikely to cut it, especially given the type of vitriol these political discussions often spiral into.”
It goes without saying that political exchanges between co-workers can turn into something more serious. This sentiment is affirmed by the MOL, “[w]orkplace harassment may escalate to threats or acts of physical violence or a targeted worker may react violently to prolonged harassment in the workplace. It is important for employers to recognize these behaviours and to deal with them promptly because they could lead to workplace violence.”
The workplace harassment provisions in OHSA are designed to assist employers to recognize and deal with workplace harassment before it spirals into possible workplace violence. Such provisions include preparing and reviewing a policy on workplace harassment annually, at the least. Per the Ontario MOL, such policy should, among other things, show an employer’s commitment to addressing workplace harassment; consider workplace harassment from all sources such as customers, clients, employers, supervisors, workers, strangers and domestic/intimate partners; and, outline the roles and responsibilities of the workplace parties in supporting the policy and program.
An employer is required to develop and maintain a program to implement the workplace harassment policy that includes how employees will communicate complaints and incidents of workplace harassment to employers, how employers will respond, investigate and deal with a complaint or incident of workplace harassment.
Thus, employees and employers should know ahead of time how to address workplace harassment under OHSA and the steps they should take. In preparing, implementing and maintaining a workplace harassment program in any workplace, the employer is duty-bound (under the common law) to exercise due diligence in taking all reasonable steps to protect workers from foreseeable harm. The exercise of due diligence in many workplaces will lead an employer to take additional steps beyond those minimum standards set out in the OHSA.
There is a general understanding that both human rights and occupational health and safety legislation in Ontario, Manitoba, British Columbia and Saskatchewan have expectations of employers and employees when it comes to ensuring workplaces are free from harassment, and that most workers have an idea of what constitutes inappropriate or harmful behaviour through workplace harassment prevention policies.
However, it seems that the main disagreement is with respect to whether an initial callous comment or remark relating to politics or someone’s political opinion or leanings “ought reasonably to be known to be unwelcome”, and therefore considered to be harassment. It could be very easy for a healthy debate of current events to result in one or more workers feeling offended. Whether or not this potential offence amounts to harassment is not as straightforward as the commentator expressed and would need to be determined on a case-by-case basis. Until there are uniform and clear guidelines from the courts or tribunal for how to discuss politics in the workplace, both employers and employees should be aware of what constitutes formal harassment, and err on the side of respecting one another’s differences.